Campbell v Griffin and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT WALKER,LORD JUSTICE THORPE,THE PRESIDENT,A |
| Judgment Date | 27 June 2001 |
| Neutral Citation | [2001] EWCA Civ 990 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2000/6157 |
| Date | 27 June 2001 |
[2001] EWCA Civ 990
The President
Lord Justice Thorpe and
Lord Justice Robert Walker
Case No: B3/2000/6157
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORTHING COUNTY COURT
(MR RECORDER HALL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr T Sisley (instructed by Marsh Ferriman & Cheale for the appellant)
Mr C Holbech (instructed by Bennett Griffin and Partners for the first to third respondents)
Mr W Webster (instructed by The Solicitor, West Sussex County Council for the fourth respondent)
This is an application for permission to appeal, with the appeal to follow if permission is granted for an appeal, from an order of Mr Recorder Hall made in the Worthing County Court on 27 March 2000. The judge's order had the effect of dismissing a claim based on proprietary estoppel put forward by the claimant, Mr Kenneth Campbell. On a counterclaim by the first, second and third defendants the judge made an order for possession of the freehold dwelling house, 26 St Botolph's Road, Worthing, where Mr Campbell was living.
26 St Botolph's Road is a substantial semi-detached house which had for many years been the home of Mr Thomas Ascough (who died on 9 October 1995) and his wife Mrs Constance Ascough (who died on 10 December 1997). (Ascough is spelled in some of the documents as Ayscough.) Mr Campbell had lived in the house since he first moved in as the Ascoughs' lodger in 1978. The first and second defendants, Mr Terence Griffin and Mr Peter Laverick, are Mr Ascough's executors, and Mr Griffin and the third defendant, Mr Peter Bennett, are Mrs Ascough's executors. All the executors are partners in a firm of solicitors at Worthing, Bennett Griffin and Partners. The fourth defendant the West Sussex County Council is interested because it has a statutory charge on the house under the Health and Social Services and Social Security Adjudications Act 1983.
When Mr Campbell first became the Ascoughs' lodger he was a single man of 30. He had worked for Wimpey since leaving school at 16 and after starting as a manual worker in Glasgow he had moved to a job in Wimpey's accounts department in Perth. Then when he was about 28 he was made redundant and he worked in a variety of jobs until Wimpey offered him a new job, as an area office manager based in Worthing. Later he was made redundant again and he has since worked in a variety of jobs, including weekend shift work at Gatwick Airport.
In 1978 the Ascoughs were advertising a room in the house and Mr Campbell took it at £10 a week. Mr Campbell said that the Ascoughs and he got on well together from the first. They were then already in their late seventies. Mr Ascough was (according to the evidence of Mr Griffin, his solicitor) a very intelligent man who had held a senior position in the civil service. Mr Campbell described him as "full of life, a loud character with a charming personality". Mr Griffin described Mrs Ascough as less intelligent. The Ascoughs had no children but had two nieces, both married with children.
For the first five years after 1978 Mr Campbell's position in the household was that of a lodger who got on very well with his landlords. But by the end of five years or so the relationship had moved beyond that. As they became increasingly frail the Ascoughs came to depend on Mr Campbell for help in various ways, and they were very grateful for his help. Mr Campbell had not had an easy childhood (he and his sister had been in a children's home for some years) and after his move to Worthing his only serious romance had not prospered. The Ascoughs' affection for him amounting, he said, to treating him as a son was welcome to him.
Mr Campbell's evidence was that from about 1983 the Ascoughs frequently said to him that whatever happened, he had a home for life. The judge accepted that such assurances were given by both Mr and Mrs Ascough, and he seems to have accepted (although his findings are not entirely clear on this point) that they were given frequently, sometimes in the presence of others. But the judge did not accept that they began as early as 1983. His finding of fact, which is not challenged, is that the assurances were made from about 1987.
Mr Campbell's evidence (in support of his claim to make good the essentials of detriment and reliance) was that at first he helped with cleaning the house and maintaining the house and the garden; with shopping; and with preparing meals for them, especially the evening meal. The level of Mr Campbell's assistance to the Ascoughs progressively increased and his position became that of a carer. He was never a full-time carer, because for most of the time Mr Campbell was working, sometimes for long hours, and in the last period before the Ascoughs finally went into residential care there was a home help, Mrs Garrett, who came in for two to three hours a day from Monday to Friday. But Mr Campbell was the only carer who was there at night. Mr Campbell stated in part of his witness statement which was not challenged in cross-examination,
"It is difficult to be accurate about the date when Mr Ascough began to lose his sense of balance but his health did deteriorate. However, Mr Ascough did have an old war injury which did result in him having headaches and blackouts. There were occasions when I would return from work to find him lying on the floor. Mrs Ascough would be unable to help him because he was such a big man. In any event she was becoming increasingly deaf so that she could not use the telephone. There were occasions when he would have been lying on the floor for a number of hours without any help. I would pick him up and give him a wash, if necessary, and put him back to bed. I would then help him to get changed, make him a drink and if he was hungry, a meal."
Mr Campbell also said in his witness statement,
"When I look back I realise how dependent Mr and Mrs Ascough had become upon me to undertake basic everyday tasks for them, such as waking them in the morning, making breakfast, leaving food out for them for the rest of the day. When I returned home I would make the evening meal, clean the house and help them as and when necessary. I did not view the fact that I had become their carer with any resentment, I was simply helping friends as and when necessary."
That part of his statement was challenged in cross-examination and Mr Campbell agreed that after Mrs Garrett, the home help, was there, it was she who would get their breakfast and prepare their midday meal. But Mrs Garrett seems to have been on the scene only in 1993 (and January 1994).
That illustrates a feature of this case which is clearly apparent from the transcript of Mr Campbell's evidence, from the judgment below and from the hearing in this court. That is the difficulty in establishing the chronology of events with any precision. Mr Campbell did not keep a diary or any other record of the gradual deterioration in Mr and Mrs Ascoughs' condition, or of his assistance to them at different times. Mr Holbech (who appeared below and in this court for the executors) very fairly told the court Mr Campbell was imprecise and diffident in his oral evidence, suggesting that he may not have done himself justice in the witness box. It may be useful, therefore, to mention a few more or less reliable landmark dates.
Throughout the 1980's (when the Ascoughs were in their eighties) Mr Campbell assisted them in the way described above. In 1985 the Ascoughs both made wills under which Mr Campbell was not a beneficiary (their estates were left mainly to descendants of the two nieces, with some gifts to charity). In 1987, as the judge found, they began to make assurances to Mr Campbell about his having a home for life. Either at the end of 1991 or early in 1992 the Ascoughs were taken into residential care at a nursing home called The Beeches. Although this was termed temporary respite care it seems to have lasted for the best part of a year. While they were in respite care, and because of the County Council's statutory duty to recover all or part of the cost of care in appropriate cases, the question of selling the house arose. At that time, it seems, Mrs Ascough's mental health was beginning to deteriorate but Mr Ascough retained his intelligence (although he did on 21 October 1992 give his solicitors an enduring power of attorney). At about the end of 1992 the doctors and the Social Services decided that the Ascoughs could return home, but with support from Social Services in the form of Mrs Garrett (the regular home help) and so-called twilight visitors who made brief calls in the evening to help in putting the old couple to bed.
On 15 December 1993 Mr Ascough made a codicil to his will in favour of Mr Campbell. On 22 January 1994 Mr and Mrs Ascough went back into residential care in Elton Lodge and they remained there for the rest of their lives. During 1994 Mr Griffin (who now finds it his duty to oppose Mr Campbell's claim) was engaged in correspondence with the County Council seeking to persuade the Council not to insist on an immediate sale of the house but to register a charge on it. In particular Mr Griffin wrote to the Benefits Agency a letter dated 16 January 1995 which deserves to be set out almost in full:
"The situation is that the 'Tenant' is a Mr K Campbell who has to all intents and purposes been in the position of a Son to the Ayscoughs for the past 16 years.
We understand that he moved down to England from Scotland some 16 years ago, having lived in a Council Flat in Scotland. He lived for a short...
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